A friend asked me to write something up about the debacle that was the case against Dominique Strauss-Kahn, the former head of the International Monetary Fund and presumed future candidate for the French Presidency. And then I sat in front of a blank screen, staring and staring and feeling more than one wave of frustration crash over me. Something bothered me about this case—the way it intersected with power, race, and gender hierarchies, its resurrection of the threadbare narrative of “she asked for/deserved it,” and finally, the hopelessness many of us felt because of the outcome of the case that never made it to trial. For if such a preponderance of evidence as was gathered against Mr. Strauss-Kahn still fails to be taken seriously, what possibility remains that any case will actually be heard on its merits?

One of the ideas I’ve been pondering involves consent. On the face of it, consent looks like an enlightened concept, involving a mutual negotiation between two equal partners to engage in some act—sexual or not—together. It supports the ideal of “equality” between men and women which is by definition, a heterosexist construction of sexual assault, and also one that makes invisible other power differentials, like say, a woman of color from a developing nation and a white, very rich man from a G8 member nation. Consent also presumes that there are no language difficulties between these “equal” partners, no disagreement on interpretation, and clear enough communication that something like “no” or “stop” will be simply understood and to which a partner will respond appropriately.

Let me say here that I’m not attempting to rid the world of consent. Consent is bound up with other necessary concepts of human behavior toward some kind of liberation, like oh, choice. And if we eradicate consent, what happens to sex? What I’d argue is that when consent really matters—in other words, when it’s in dispute—is when consent shows its weaknesses. Perhaps we need another force to protect accusers.

No, I’m not a lawyer, but neither are many people when they’re engaged in sex or in the moment of a sexual assault, and yet they’re making judgments about whether they approve of their partner’s behavior or not. At some point, when an experience is brought to the attention of law enforcement or lawyers, professional judgments about what transpired are made. What is debated at this point isn’t consent itself, it’s whether the actions of an accused perpetrator are criminal or not. Consent is, in a criminal case, absent on the part of the complainant.

In order to decide to embark on an airplane, and arrest publicly a man of as much stature as Mr. Strauss-Kahn, prosecutors would have had a staggering amount of evidence against him. Yet the case folded before it really even began, due to erroneous statements about the accuser’s moral history and perhaps her motives for making a complaint. Here again, consent comes into play; if we believe an accuser is morally suspect, we question the validity of her statements about consent. When The Daily News, The New York Times, and The Washington Post all question her “story,” society begins to doubt that she actually resisted Mr. Strauss-Kahn’s advances.

Consent fails in many ways like this. She didn’t say “stop” early enough, her provocative clothing made interpreting a lack of consent difficult for the accused, she has a promiscuous history (in this case The Daily News falsely declared she was a sex worker), and so on. Until the 1990s wives couldn’t withhold consent from their husbands in many states, because the marriage contract was seen as carte blanche consent. If lack of consent is the basis for someone to complain against another person’s behavior, then casting doubt that consent was withheld is the defense’s best tactic for acquittal, and this is one of the markers of how sexual assault cases differ from other criminal prosecutions. Nobody argues about whether an individual secretly wanted to be robbed, because we all assume people don’t consent to being robbed. Consent perversely gives defenses a strategy for success that has nothing to do with the evidence in the case.

This summer when Representative Weiner was caught sending crotch shots of himself to young women, the first thing he said was that they were consensual. This is often the front line defense, because to proclaim consent existed (or a lack of consent was misunderstood) changes what outcomes prosecutors are willing to seek. According to the Bureau of Justice Statistics, 13 percent of sexual assault cases (non-statutory rape cases) result in a conviction. Violent crime felonies (rape, aggravated assault, attempted homicide, and homicide) as a whole have a 31 percent conviction rate. In homicide cases, defenses like diminished capacity on the part of the accused, claims that the death was accidental, or the notorious “gay panic” claim are well known to be weak. But bring in a woman’s ability to remove her consent from a sexual assault case, and all the defense needs to do is cast doubt on her truthfulness. In the meantime, the press reporting on these cases, especially the high-profile ones, gives us all another cultural moment to intimidate future sexual assault survivors from coming forward.

One last number: although reported rape arrests were down nationwide in 2009, they still approached 90,000. How the early demise of the Strauss-Kahn trial will affect the next several tens of thousands of sexual assault cases will probably be up for debate for a long time to come. There’s certainly no reason to suspect that using consent against women will be any less popular going forward as it has been in the past.

In the army, you cannot have a romantic relationship with somebody in your chain of command — consent does not play into it. This is because there cannot be any way that you can be sure there is real “consent” when such power differences are involved. The same would be true in other situations.
Yet, as you point out, society only allows for consensual sex. So we try to force every sexual encounter into the straightjacket of consent, which of course doesn’t work.
I know this sounds backwards, but I think that if society would find the idea of Mr. Strauss-Kahn paying for sex acceptable, it would be obvious that him having sex with a cleaning lady without a contract in place would by definition be rape (since, given the difference in power and money, consent is not an issue). There would not be an issue with her credibility or lack thereof, just the simple physical evidence and absence of a contract would be enough for a conviction.
Of course, especially in the U.S. the idea it would be OK to pay (or get paid) for sex is far more immoral than the injustice of having all these rape cases not being prosecutable…

But then you get into issues of very great differences in power between whores and johns. Not many people choose prostitution as a career but are forced into it – whether by a pimp or by simple economics – so johns almost always have more power than whores, just like DSK has way more power (and far greater resources to hire lawyers and other mouthpieces) than his accuser.

[…] trial itself was not free of misogyny. As I’ve written about during other publicized sexual assault investigations, questions swirled around regarding the ability of the young woman to give consent to her […]

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